After it was a widely-accepted foregone conclusion that state same-sex marriages bans would continue to be struck down unabated, the Sixth Circuit Court of Appeals goes and upholds the constitutionality of the bans of the four states (Michigan, Ohio, Kentucky, and Tennessee) in its jurisdiction.

The opinion, in DeBoer v.Snyder, opens by framing the nature of the case. And, according to the opinion’s author, the case is not one wherein the court decides important legal questions. For if the court were to do that, it would be tantamount to “a poll of the three judges on this panel … about whether gay marriage is a good idea.”

Instead, the case is about “change” – and whether it is up to the federal judiciary to change the long-standing definition of marriage simply because a group of activists have somehow stumbled their way into federal court.

Obviously, you can tell by the way the question is framed that the court answered it in the negative. But it isn’t simply the ultimate conclusion reached by the majority that leads me to believe that this decision is a historic relic, seemingly written out of the context of the last century of social change and the last several years of jurisprudence on this topic.

No, it is actually the opinion’s reasoning and the series of assumptions upon which it is based that leads to the conclusion that the author of this opinion is out of step.

As mentioned above, the fact that the author believes that he is a member of some kind of legislature, rather than a sitting judge that resolves questions of law that come before the court, causes me to question his judicial philosophy and how he sees his role in it.To the author of the opinion, the role of a federal judge is not to determine whether certain laws violate the U.S. Constitution; rather, it is to determine whether to usurp the will of the people as expressed through their respective state legislatures – and the only correct course of action here is to never do it. To be sure, the opinion does eventually distill a legal question out of the philosophical discourse of an introduction:

Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?

The judge seems to invoke his own sensibilities in resolving this question in the negative:

A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.

Braddock then finds that the states have at least two perfectly rational bases for preserving the sacred, age-old traditional definition of marriage.

The first of these rational bases is “responsible procreation.” You see, according to the opinion, governments regulate marriage in order to regulate sex (yes, this is seriously straight out of the opinion).

the author then invites us to “[i]magine a society without marriage,” bemoaning the myriad social ills that would follow in such a scenario: “men and women follow[ing] their procreative urges wherever they take them;” individuals having more than one “mate;” children born out of wedlock. It’d be quite the apocalypse, you see.

According to the opinion, “a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them.” After all, “[p]eople may not need the government’s encouragement to have sex,” but they do need it “to create and maintain stable relationships within which children may flourish.”

There you have it, as if from a 19th century’s minister’s mouth: people need large organizations like the government (or a church) to make sure they stay together as a family.

The second of these rational bases is the preservation of the sanctity of marriage. The opinion is certainly not unrealistic of the shortcomings of 21st century marriage: “we do not deny the foolish, sometimes offensive, inconsistencies that have haunted marital legislation from time to time. States will hand some people a marriage license no matter how often they have divorced or remarried, apparently on the theory that practice makes perfect.”

Regardless of the less-than-perfect state of the institution of marriage today, though, the author writes that the respective state governments should not be punished for at least trying to maintain marriage’s sanctity by preventing its transformation from the timeless, traditional definition of “one man and one woman.”

Now, there is plenty more to the opinion, including a finding that there was no animus behind the enactment of these same-sex marriage bans, whose sole purpose was to prevent homosexual couples from achieving the right to marry, or that same-sex couples aren’t being denied of their fundamental right to get married because “marriage” only means “one man and one woman.”

Fortunately, the Supreme Court will correct this mistake, so no permanent damage will be done.

About the Author

Blog Writer, Thomson Reuters

Jeremy Byellin is an attorney practicing in the areas of family law and estate planning. He lives in the Minneapolis area with his wife, who is also an attorney, and his two sons and daughter. In his spare time, he enjoys running and being outdoors.
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